410 (Criminal Plea Bargaining)

Question 1

Franklin is charged with robbery in the second degree for allegedly holding up a gas station. After his arrest, he and his attorney meet with the prosecutor. The defense attorney says: “What can you offer me?”
Prosecutor responds: “3 years on a Robbery- Level Three.”
The defense attorney turns to his client, who says: “Look, I know it was wrong, but it wasn’t a robbery. I didn’t have a weapon; I just took money from the cash register when the guy wasn’t looking.”
The prosecutor remains firm and negotiations break down. At trial, Franklin testifies that he has never been to that particular gas station and has never stolen anything in his life. The prosecutor attempts to use the statement Franklin made in her office to impeach his trial testimony. Is the statement admissible under Rule 410?

Answer 1

• No, Rule 410 precludes statements made by the defendant during plea bargaining, even when offered to impeach the defendant.
• What about during a prosecution for perjury? Only statements made under oath, on the record, and with counsel present are admissible in perjury or false statement prosecutions.
• Statements made during plea negotiations with a prosecutor are not under oath or on the record. The exception covers statements made during a plea colloquy where the defendant is under oath, on the record and represented by counsel when that hearing doesn’t result in actual guilty plea or result in a withdrawn guilty plea.